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mcleland writes "The BBC reports that Nintendo is now using the content ID match feature in YouTube to identify screencap videos of people playing their games. They then take over the advertising that appears with the video, and thus the ad revenue. Nintendo gets it all, and the creators of these videos (which are like extended fan-made commercials for the games) get nothing. Corporate gibberish to justify this: 'In a statement, the firm said the move was part of an "on-going push to ensure Nintendo content is shared across social media."'"

Or how about a class action lawsuit? Do clothing designers take Hollywood profits because their clothes are on actors?I think in fact not only should Nintendo not get ANY money, because they already did when they sold the movie making tool to the customer, but they should have to pay for product placement. Stick that in your court and litigate it. Remember Hollywood will be watching that one closely, and could even donate some shysters to the cause.

Nintendo are apparently trying to lose money by discouraging people from uploading videos that promote their games.

While I'm sure that people liked the ad revenue that they got from their video being viewed (anyone have any idea how much they get?), my understanding of LPs is that they are almost always a labor of love, not of cash. So Nintendo taking away the ad revenue might discourage some that were using it as a business (though if your business relied entirely on one company's completed product, protected under copyright, you need to rethink your business plan), but the majority will probably continue doing what they do.

In fact, this might even increase LPs: while I don't imagine it was a huge group, there might be some worried about a lawsuit for using Nintendo's IPs. By Nintendo taking the ad revenue, this is explicit permission to use video of their properties, which may bring more people to the table who just wanted to share but were concerned over copyright.

On the face of this, I'm of two minds: on the one hand, the videos don't exist without the users who spent their time to edit and upload them, and they do act as free advertising (or the opposite, if the game turns out to be bad and the videos show that off). On the other, the user would have nothing to upload if not for Nintendo's product, and they do properly own the copyright on those games. Personally, I think it should be split (50/50 sounds good, though I'm sure both sides would prefer a larger slice,) but the power is all with Nintendo here (the big company, the copyright holder, etc.), so that's not going to happen.

Full disclosure: I've done one basic LP (Bioshock Infinite), posted to Livestream, got no ad revenue. (And it doesn't exist anymore since I had a free account.)

Yes,but once Nintendo set the precedent, what mushrooms from that? Whatever's acceptable stays that way till litigation or legislation. Hmm.. let's think... what other filmmakers could that affect if you can't use certain media, maybe you can't use certain locations or those locations can't have certain elements. Will a company be able to sue successfully because it's product appears in a scene of a movie it dislikes? Maybe they just want a huge chunk of the revenue when they see their element in a movie li

Will a company be able to sue successfully because it's product appears in a scene of a movie it dislikes?

As stated by the GP, many companies will pay studios to use their products in movies as a form of advertising, so this would be rare. I did find this article [cbsnews.com]:

Legal experts say fairly recent product placement practices, in which companies pay producers to use their products in TV and movie scenes, have mistakenly given corporations the idea that they can control the use of their products on camera.

I would site cases over audio sampling . By changing the recording by at least 5% it could be utilized. So run some filters over the film portion of the program.Change it by 5%, although if narration appears and covers more than 5% of the audio, which it probably does. So, do we weigh a 5% portion of a digital file to find how many bytes are audio and how much is video? Originating in what codec? If audio is only 10% of the whole thing,then covering half with narration or voice overs and sound effects would

It's a bit sui generis. It's using a substantial portion of the copyrighted work, yes, but it's transposing it to an entirely different medium.

A book review can summarize the entire plot, because doing so doesn't substitute for the experience of reading the book.

This is sort of, but not quite, like playing through the entire game. Does watching it substitute for playing it? It doesn't seem like it to me, at least in some cases.

According to my principle, it would come down to how much of the game is just a slightly interactive movie. For example, hours of tetris gameplay should be allowed since 1) it's still an infinitesimal fraction of the total possible amount of tetris gameplay, 2) the skill of the player is frankly a much more substantial portion of the work than the tetris game itself is. In contrast, a playthrough of ff7 would be less kosher and a playthrough of indigo prophecy/fahrenheit would be completely forbidden.

A book review can summarize the entire plot, because doing so doesn't substitute for the experience of reading the book.

But if they read the entire book to you in video, it wouldn't be covered by Fair Use, even though they're recording the video with your their equipment and using their own voice to read the words. LPs don't summarize (again, to my knowledge), so there's no comparison.

While a Let's Play might not cover 100% of the game, they cover the vast majority (so like someone reading a book over a vid

That argument isn't exactly right though. Following your analogy, while the book is being read they are providing commentary over top (pushing the reading itself to the background) as their interpretation of the work. It's more of a case study than a direct reading.

In Canada the answer would be without a doubt: yes. Nintendo would have no right to that revenue because a) the medium is different b) how a game is played by a particular user is an original work c) any additional content (audio explaining stuff about the game) is more than likely original. The only thing is that they would have to make sure to credit Nintendo but no more than that.

In the US it's likely going to be a different story - Canada has specific la

Nintendo would have no right to that revenue because a) the medium is different b) how a game is played by a particular user is an original work c) any additional content (audio explaining stuff about the game) is more than likely original. The only thing is that they would have to make sure to credit Nintendo but no more than that.

That's why in Canada you don't need film rights to make a movie out of a book, because

a) the medium is differentb) how the film is shot by a particular director is an original w

Sounds like ya'll have a far more sane copyright system than we do here in the States. Down here, the allowed use of copyrighted works without permission is based on "fair use". Here's a quick overview of how the law looks at it [copyright.gov], but that's like taking a scoop of water out of an ocean; "fair use" is a very complicated topic, and the variety of factors are often argued and fought tooth and nail, both in and out of courtroom.

No. It's analogous to you sitting at a table and playing Monopoly, then uploading a video of that gameplay, only to have Parker Brothers hijack your ad revenue. Gameplay video differs from TV and movie uploads in that, for consumers, the latter is the goal itself –– to watch the TV program or movie. For a game consumer, gameplay video isn't the goal. Gamers want to play the game, not watch a video of another person playing the game. Yes, the gameplay video involves copyright protected content, without which one couldn't make this new content, and so there is the temptation to argue that gameplay video is a derivative work; still, gameplay video is very clearly within the spirit of Fair Use. This should be especially apparent in the case of YouTube game reviewers or game commentators. If it were not, then I suppose I would be infringing just by playing a video game in front of a bunch of people. The fact that gameplay videos are free promotions for game publishers probably shouldn't have much weight since it's anyone's right to decide how they want to promote their product, but in any case, the threshold at which Nintendo suddenly takes over is curious. How many frames of video must feature a Nintendo product before Nintendo can take the ad revenue? What happens if I'm a video game reviewer and I show clips of gameplay from both Sony and Nintendo content? Will that result in a threeway battle over ad money between Nintendo, Sony, and me?

Lets say you are selling a car. Then you find out thousands of people are showing themselves driving your car, and talking about how awesome it is. That is free advertising. Now swooping in and going,"Give me all the profits from those videos." is something a cartoon villain like Monty Burns would do.

Let's say you're selling a book. People are making films of themselves reading your book, with all the words visible onscreen, and putting up ads and making money off of reading your book.

Instead of having their video yanked and suing their infringing ass into oblivion, you clear your throat and coopt the ad revenue, but let the video stay up.

Seems reasonable to me.

Which path do you think the Tolkein Estate would take?

The difference between publishing the words to a book and showing a game is that everyone buys a book to read the words, but few (?) people buy a game just to watch someone else play it. Otherwise, game makers wouldn't have to actually create games, they could just sell pre-canned videos of what game play would look like if they actually produced the game.

Seriously who cares, Nintendo is FUCKED with a capital F. They bet their ass on the casual gaming market only to find that the casual gaming market is "here today, gone later today" and are too busy playing with their iPads and Kindle Fires to give a rat's ass about another Nintendo gimmick controller, their sales are terrible and that is when compared to systems that should have been EOLed 2 years ago, and when the PS4 and Xbox next come out along with the Steambox Nintendo will be lucky if they get half a

The "casual" market is in fact there all the time. All you need to do is release games the "casual" market wants. Easier said than done, but Nintendo did it with Wii. They managed to release several games that sold better than any game on the other systems.

Nintendo is fucked because they gave up on the "casual" market. The Wii U is an attept at a "hardcore market" console. Nintendo said so themselves. Nintendo will fail at hardcore, so they should return to making "casual" games like 2D Mario and Wii Sports

Show a judge clear evidence of great many similar and lethal asbestos related cancers in an industry that knew what was happening and did nothing to stop it and he will least be willing to hear you out.

There is a terrible urgency to such cases and the stakes are high.

The division of add revenues from a gamer's YouTube video ---- a clearly derivative work based on Nintendo's IP? The chances that any individual plaintiff will have been damaged enough to mee

I'm only commenting to bring your comment to light for those that browse with anonymous cowards hidden. I don't know if you're "right" because this isn't my area of expertise, but I will say the comment is very informative, if it is indeed accurate.

There's absolutely no way anyone can realistically claim an LP isn't a 'derivative work' under copyright. As such, the game's maker -could- have the videos pulled and sue their ass into oblivion.

LPs contain far too much footage of the games in question to count as fair use. A couple of minutes in a review is fine; hours and hours of start to finish video is not.

The amount of footage isn't really relevant here. It's patently ridiculous to argue that a video recording of someone playing a game is anything remotely close to the experience of playing that game (i.e. the LP videos are not the game itself). A video recording of a movie is that movie, but a video recording of a game is not the game. Therefore it's not at all clear that a LP video would not be fair use, since the presentation is highly transformative (since the experience of playing the game and watching someone else play it are completely 100% different). To quote Judge Pierre N. Leval (as used by the SCOTUS in their explanation of fair use):

The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original....[If] the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

I would say that LP videos fit that understanding exactly. Standard disclaimer: IANAL.

Oh, and this is incredibly and unarguably a stupid decision on Nintendo's part. That much is certain.

I can assure you the development company owns the copyright on the story and not just the game as you shoehorn it to be. I wouldn't really call playing the game as it was intended to be played a "transformation".

But I completely agree about this being a stupid decision on their part. Even if I think the law gives them the "right" to do this.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair.

The purpose and character of the use, including whether such use is of commercia

Actually, I guess this non-car non-pizza analogy points out an interesting difference. I'm certain that MST3K's producers made fully sure that the rights to play the movie in syndication were fully paid up, no different than your local TV station showing the "Early Saturday Afternoon Matinee" show... they just did something interesting over it (riffing, goofing off, faux shell story surrounding the movie bits).

I'm certain that MST3K's producers made fully sure that the rights to play the movie in syndication were fully paid up

Yes, MST3K made sure they had a legal ability to do what they were doing. Cinematic Titanic continues this tradition. This is one reason why the movies they show tend to be bad: bad movies are cheap to license.

That's the brilliant part about Rifftrax. Since they are not redistributing the movie, they don't need rights. Thus they can do any movie they want, including Star Wars movies, Lord of the Rings, anything. They don't have to pay anything and they don't need to get permission first. (I don't think George Lucas would give permission to Rifftrax to mercilessly rip Episode 1...)

I'm just waiting for home Blu-Ray players to start offering an option to play an externally-downloaded audio track while playing a disc, or for AppleTV sort of products to do the same for general media files. There is no technical reason why this could not be done, and it would mean that when you pause the movie the Rifftrax pauses as well, much more convenient for the user.

Ri~ight, so extensive and in-depth reviews, like those made by Redlettermedia (Mr. Plinkett's Reviews) aren't reviews either, I guess? They are often longer than the movie he is reviewing, and clearly take a lot of effort to make. More germane to this particular article, Angry Video Game Nerd would probably be pretty pissed at this.

Looks like bullshit. Feels like bullshit. Smells like bullshit. Tastes like bullshit. Oh yeah, diarrhea dump in the ear confirms that it sounds like bullshit too. 5/5.

It's a shared copyright. All the art is very much owned by Nintendo. The addition of commentary adds an additional copyright owner of the commentator, but since the footage definitely is full of Nintendo copyrighted material, they could easily be within their rights to have it removed. Basically, they've given these playthrough video makers a choice, either give Nintendo all the ad revenue, or take down the video that contains their copyrighted material.

Hardly seems objectionable that they might take what's owed them for the work that they put in to actually make the content that people are profiting from. Hey, it's a massive improvement on the music industry: No, we're not going to sue you or other people who use what you've made publically available, or even take your material down; we'll just take the advertising money you'll earn from this point on..

The videos are about people playing a game, not the game itself. That is a transformational use and thus a fair use. Nintendo is stealing from their own customers, plain and simple.

The other issue(aside from whether Nintendo has a right under law to do this or not) is whether Nintendo is being a load of idiots by doing this...

If a video of somebody playing a game is a good, or even adequate, substitute for that game, I think that it's fair to say that the game must really suck, badly. If it isn't a good substitute for the game, then "Let's Play" videos are likely to be free advertising for Nintendo, produced by enthusiasts. Given Nintendo's, um, totally commanding lead in the next-gen

The videos are about people playing a game, not the game itself. That is a transformational use and thus a fair use. Nintendo is stealing from their own customers, plain and simple.

What if I post a video of me watching a movie? It's not about the movie.. it's about me watching the movie.

We're looking for a fine line in what's really a grey area. I can easily see both points of view.

if you film yourself watching the movie, it's fair game.if you just post the movie, it's the same thing as the movie.

however, the nintendo game doesn't play out on it's own, the player input changes is.

I guess the ultimate of that is saying that if you make a tutorial video for autocad, would it be just to say that you lose rights to said video, because all the content "was" already in the program you're making the tutorial out of.. or even further, does adobe own copyright for everything edited with the

I guess the ultimate of that is saying that if you make a tutorial video for autocad, would it be just to say that you lose rights to said video, because all the content "was" already in the program you're making the tutorial out of.. or even further, does adobe own copyright for everything edited with their sw..

Autocad and Adobe-Whatever exist to create original content. Can you really say that of a game? The game's content is already set. The player may expose different parts of it and in different order, but the content is still just the content. The player isn't really "creating" anything.

Like I said, grey area. Even the movie watching analogy, I get the MST3K example. Yet, if I just sat there and didn't say a single thing the whole time the movie played, is that a valid derivative work? No.. but what if

Depends on the game. Compare Minecraft LPs from Paul Soares and Ethos. They are completely different. The same would be true of any LP for any free world or RPG game, and would also apply to strategy videos for FPS.

The same can't be said for most platform games, or other games on rails though.

You (and the +5 poster a thread or two up) misunderstand "transformative" use.

The proper analogy to video gameplay has already been decided on by the courts, and it is written plays (which, also applies to screenwriting).

All three take another work, and produce an interpretation of that work. The original playwright/screenwriter/videogame author still is the owner of the base copyright being used, and the work is classified as a Derivative Work. The performer has also contributed significant copyright

Also, these are derivative works in most cases. They're not just putting FMV segments up, they're playing the game, adding content (commentaries for instance), and are getting stolen from just as much as Nintendo was previously. This would be like a cover band being required to pay all of their income to the original bands. Some sort of revenue sharing agreement is clearly needed.

Academic: Hell noParody: Nope, except in the rarest of casesCommercial nature or is for nonprofit: quite clearly commercialThe amount and substantiality of the portion used in relation to the copyrighted work as a whole: usually they play through the whole game.The effect of the use upon the potential market for or value of the copyrighted work: Possibly detrimental

I don't see any path for fair use in there. It doesn't really meet any of the requirements.

The effect of the use upon the potential market for or value of the copyrighted work: Possibly detrimental

Possibly detrimental, possibly beneficial. Watching a playthrough could make a viewer say "ew, that game looks terrible" or "hey, I want to try that!" I don't see how you can make a deterministic statement either way. Your other points are accurate, though.

No. The smart thing for Nintendo to do is to not act like Monty Burns. Don't be a douche for no good reason. Sooner or later you'll stumble upon something that actually alienates large numbers of your users.

Yes, some people actually make money off playing games and putting that on the internet. They are also almost exclusively the worst, least interesting LPers in the universe. I wish the idea for let's plays never got out.

Yes, really. The particularly popular LP-ers make their entire living off of the videos they produce.

That might sound strange at first, but some of the best LP-ers are something of a cross between comedians and critics. Both of these are jobs that we are accustomed to seeing making a living off of their work. A good LP-er doesn't just play the game, their value is in their commentary and jokes as they play the game.

A good LP-er doesn't just play the game, their value is in their commentary and jokes as they play the game.

I've never heard of this, but I believe you. My favorite podcast, Spilled Milk [spilledmilkpodcast.com], is really funny and I think those guys would be just as funny if they stopped talking about food and started talking about some other topic.

Would you please post a link or two with some of your favorite "episodes" of LP?

Ethos (EthosLab) who does Minecraft videos stated on his channel that he makes more money though youtube than he does on his day job. He does put up a video a day (and gets 250k+ views), which would probably equate to 4 hours work a day.

I've looked at a couple of those videos, and the amount of content which is copyrightable Nintendo (or whomever the on-screen game author is) is WAAAAAY beyond anything allowable for Fair Use or similar exception.

I'm certainly not in favor of Nintendo or the like suing these folks for copyright infringement. The "unique performance" issue is certainly one which can be discussed, but I liken this to plays - sure, the individual performance of a play is unique, but since you didn't write the script, you can't expect to be profiting from the performance without the author's permission.

Thus, I can't see why the authors of these videos are complaining that Nintendo gets the ad revenue. I think that's an entirely reasonable compromise - Nintendo essentially implicitly licenses the video authors to show those derivative-work videos, in return for the publicity and the ad revenue.

Nintendo, of course, could be much less tone-deaf about saying the preceding, of course.

But, in the end, those videos are derivative-works under copyright law, and they can't be shown without some sort of license.

Notch has a lot more to gain from the goodwill of letting people share his games. He's a much smaller game developer than Nintendo and depends more on having the good graces of his fans. An Nintendo doesn't have much to lose. Most people won't see anything wrong Nintendo just soaks up the ad revenue from the video. It's a bit absurd that the people who make these videos think they can profit from the game.

Notch has more control and doesn't have to answer to share holders. It's overly cynical to say he did the right thing so he would look good to his fans.

Also, if they're spending time providing a useful service to people why shouldn't they be able to profit? It's a performance. The performer should get the money not the people who make the thing that is being preformed on.

The LPers put work into their videos. Nintendo made the game and sold it for profit (not to mention free publicity from videos). So previously, Nintendo and the video producer both put some effort into it, and were both rewarded. Now the LPers not only had to pay for the game, but had to produce the video and are now getting zero revenue out of it. Nintendo just wants to have their cake and eat it too.

but I liken this to plays - sure, the individual performance of a play is unique, but since you didn't write the script, you can't expect to be profiting from the performance without the author's permission.

I think Nintendo is shooting themselves in the foot with this. These videos act like servo tab [wikipedia.org]. They direct the airflow the opposite direction that you want it to go, but because of their mechanical leverage, they cause the main control surface to move, thus directing an even larger amount of airflow

He didn't argue that point. The point he was making was that Nintendo is in the right legally; not morally.

Nintendo's statement is ass-backwards. Their response reads as if it's making them out to be the good guys, saying "Unlike others, we're not just taking it down" but they're talking about groups like the **AA, rather than groups in their own form of media: video games. No other game developer sans a weird slip up by Sega does this sort of thing. So really, Nintendo are worse than just about every other

Gameplay videos can be entertaining for their plot, dialogues and visuals even if the player says nothing and plays poorly. On the other hand, a good "letsplayer" can make it much more entertaining to watch and ultimately attract some buyers. They should realize that such a symbiosis is good for both of them. The developers should stop removing or taking all the ad revenue while letsplayers should share it with the developer.Would be nice to see if Youtube allowed to share revenues between the content creat

I don't mind if people post videos of a game that I've worked on for free. But if they are putting intrusive advertisements over my content then I want those videos taken down or the commercials removed. It's not the game play videos that are a problem. I play lots of games, I love using player videos for tutorials, in fact lots of games have a replay function directly built into them to help users share gameplay content and experiences.

But I don't think that too many artists want their work having fast food commercials and 'seen on tv' products plastered over their hard work. I don't see why 'fans' should be allowed to plaster commercials over your work. I don't see why YouTube should be allowed to plaster commercials over my work either. Go commercial free and you can do whatever you want. Tutorials, reviews, analysis, story summaries, detailed walkthroughs, tool assisted speedruns, and so on.

If the true fans want to play games and share their experiences with others then let them. That's great. No one should object to those videos. But when fans are plastering commercials over a video game it is not acceptable use in my opinion. I don't want anything I've done associated with some namebrand product. I don't want fans of mine watching someone play a game I worked on only to have some product pop up in the middle of my artwork. Remove the ads.

If you want to make a video of yourself playing a game for the social experience, for an education tutorial, or for a review, then go ahead. As long as you don't put commercials next to it. Want to put commercials next to it? Then contact the original artists and company and try to work out a deal. If they say no then respect their wishes.

Do the people who took the time to play through the game carefully and precisely to create such videos for people to learn from not deserve a bit of compensation for that time? You got your cut when the game was sold. Stop sniveling about the ads, it's the only means the people making these vids have of getting compensation for their time and effort. It's not the end of the world.

Your fans are not watching LPs. If they are the game's fans then they are playing the game themselves. People watch LPs for that specific person that they love. They are the LPer's fans, not yours. Your game is just a tool for the comedic effects.

If I made a home video of my family playing Scrabble and it becomes popular on YouTube, do you think Hasbro should be paid? No. People watch because my family is funny not because they want to watch someone play Scrabble.

It's not a sign of them running out of money. It's business as usual. Just because a company has X amount of money doesn't mean they don't want to make more. Companies would ALWAYS like to make more money.
Besides, I'm 99% certain Nintendo isn't the first company to do this. I recall hearing about some of the scummier game companies doing this.

Nintendo's position that they own these videos, simply because their games were used in the making of these videos, is ridiculous and completely unsupportable.

In an analogous situation, if I record a screen capture of a demonstration of how to use a specific feature in Word, and post it to YouTube, Microsoft does NOT own my video simply because it owns Windows and Word. (The screen capture tool maker does not own my video either.)

The person who MAKES the video holds the copyright on the video, regardless of the tools used in the making of said video. It's that simple.

Kinda have to agree with this; Otherwise, Milwaukee, Stanley, Black & Decker, and Craftsman own all my furniture, since those are the brands of tools I used to make it.

"most of which" indeed. Content-ID is not always accurate (and happily errs in the "content" "owner"'s favor--feel free to Google, or YouTube, that problem). Nintendo can use false matches to destroy people that make original videos without Nintendo images, sounds, etc., by funneling the revenue to them.

Also, "corporate gibberish"? It's three simple sentences that are logically connected to each other.

I'll admit they look English. They're marketer doublespeak, but they do look like grammatically correct